This is one of the few points in criminal procedure where the constitutional text and the statute say the same thing in almost the same words, which makes the right unusually easy to state. Article 22(1) of the Constitution provides that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for the arrest, nor shall he be denied the right to consult and to be defended by a legal practitioner of his choice. The Bharatiya Nagarik Suraksha Sanhita, 2023 carries the same obligation in ordinary language: every officer arresting a person without a warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or the other grounds for the arrest.
Grounds are not the same as the section number
Being told a number is not being told the grounds. The purpose of the right is practical. You cannot instruct an advocate, you cannot oppose a remand, and you cannot apply for bail on an informed basis unless you know what you are said to have done, to whom, and when. That is why the Supreme Court, in cases arising under the money laundering statute and under the terror statute, has insisted that the communication of grounds must be meaningful enough to serve its purpose, and has held that written grounds should be furnished as a matter of course under those Acts. Whether written grounds are compulsory in every ordinary arrest is still being worked out in the courts, and it would be wrong to promise you that a written sheet is always due. What is not in doubt is that the substance has to be communicated, and communicated at the time.
The other things that should have happened at the same moment
- The officer should have been wearing accurate, visible and clear identification of his name.
- A memorandum of arrest should have been prepared, attested by at least one witness who is a member of your family or a respectable member of the locality where the arrest was made, and countersigned by you.
- Unless the memo was attested by a family member, you should have been told that you have a right to have a relative, a friend or any other person named by you informed of the arrest.
- If the offence was not a non-bailable one, you should have been told that you are entitled to be released on bail and may arrange sureties.
- For an offence punishable with up to seven years, the officer had to record in writing his reasons for believing an arrest was necessary.
The memo is the document that will be produced later to show the arrest was regular. Read what is written in the time column and the grounds column, and if it is blank or wrong, say so out loud in front of the attesting witness and note it. If you have already signed, that is not fatal, but tell your advocate exactly what the sheet looked like when you signed it.
Where to raise it
The remand hearing is the moment. When you are produced, the magistrate has a duty to satisfy himself that the intimation requirements were complied with, and the magistrate is the first judicial officer who can record what you say. Tell your advocate before you enter the courtroom, and ask that the failure be recorded in the remand order itself. An objection that appears for the first time in a bail application three weeks later carries far less weight than the same objection written into the first order.
- Ask for a copy of the arrest memo and of the grounds, if any exist in writing.
- Say it in court. Ask the magistrate to record that the grounds were not communicated, and ask that the case diary be looked at on that point.
- Get the first information report. The allegation is in that document, and it is what the grounds should have summarised.
- Move for bail on the correct footing. Whether the route is regular bail after arrest or a pre-arrest application for someone else in the same case changes the strategy, and our guide on the difference between regular and anticipatory bail sets out which is which.
- Consider the writ route where the custody itself is bad. Where the arrest and the remand are both defective, our note on habeas corpus against an arrest and remand explains what the High Court can be asked to do.
What it is worth
Be realistic about the effect. A failure to communicate grounds is a serious defect and courts take it seriously, but the ordinary consequence is that it strengthens a bail application and may vitiate a remand, not that the prosecution disappears. It also gives you a separate grievance against the officer. Where the arrest was for an offence where the Sanhita expected a notice to appear rather than an arrest at all, the point is stronger still, and our note on when the law expects a notice instead of an arrest explains that distinction.